Occupational health and safety law

121. When family violence enters the workplace, it poses a risk to the physical and psychological health and safety, not only of partners targeted by the violence, but also of co-workers and bystanders. Examples of ways in which family violence can affect occupational health and safety (OHS) include:

• physical or verbal abuse between partners employed at the same workplace;

• employees being distracted or inattentive arising from their experiences of family violence, increasing the risk of dangerous or harmful incidents;

• threatening a partner or the partner’s co-workers;

• stalking a partner at the partner’s workplace;

• harassing or attacking a partner or the partner’s co-workers at the partner’s workplace; and

• in the most extreme cases, family violence-related homicide in the workplace.

OHS regulatory background

122. Employers’ duties to address OHS risks caused by family violence, like other OHS duties, are governed by common law duties and Commonwealth, state and territory legislation and regulations. In line with the general practice in most comparable jurisdictions, Australia’s OHS legislation avoids detailed requirements in favour of broadly-formulated duties that allow employers discretion in how to achieve compliance.^[85] Regulations and codes of practice supplement these general duties by providing detail relevant to particular topics such as: specific settings, like construction sites; specific hazards, like asbestos; and procedures related to unions or licensing.

123. The key elements of the Commonwealth framework governing workplace health and safety are:

• Occupational Health and Safety Act 1991 (Cth) (OHS Act);

• Occupational Health and Safety (Maritime Industry) Act 1993 (Cth) (OHS Maritime Industry Act);

• Occupational Health and Safety (Safety Arrangements) Regulations 1991 (Cth) (OHS Regulations 1991);

• Occupational Health and Safety (Safety Standards) Regulations 1994 (Cth) (OHS Regulations 1994);and

• Occupational Health and Safety Code of Practice 2008 (Cth) (OHS Code).

124. Unlike the OHS Act and OHS regulations, the OHS Code does not stipulate mandatory obligations. However, the OHS Code may be used in court as evidence of the standards of health and safety that employers should achieve.^[86]

125. The Safety, Rehabilitation and Compensation Act 1988 (Cth) outlines a workers’ compensation scheme and establishes two bodies responsible for its implementation and maintenance—Comcare and the Safety, Rehabilitation and Compensation Commission (the SRCC).^[87] The OHS Act also charges these bodies with ensuring compliance with OHS standards, advising employers and employees on health and safety matters, and formulating policies related to OHS.^[88] In addition, Comcare and the SRCC publish supplementary guidance materials.

126. An effort to harmonise Commonwealth, state and territory OHS legislation is currently underway to improve safety outcomes, reduce compliance costs and improve regulatory efficiency.^[89] Part of this effort has included establishing Safe Work Australia (SWA), a statutory agency whose duties include developing national OHS policy and preparing model legislation. Since its establishment in 2009, SWA has published a model Work Health and Safety Bill, model Regulations, and model Codes of Practice in a number of areas.

127. The Commonwealth, along with states and territories, has committed to implementing the final versions of the SWA Bill, SWA Regulations, and SWA Codes of Practice.^[90] Accordingly, although the Terms of Reference require the ALRC to review current Commonwealth law, the discussion below also focuses on the content of these model provisions.

Duty of care

128. Under the OHS Act, ‘[a]n employer must take all reasonably practicable steps to protect the health and safety at work of the employer’s employees’.^[91] The SWA Bill expands the class of persons to whom a duty is owed from ‘employees’ to ‘workers’, but is otherwise similar:

A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of [workers] while the workers are at work in the business or undertaking.^[92]

129. As described in the Explanatory Memorandum accompanying the SWA Bill:

The primary purpose of the Bill is to protect persons from work-related harm … It is not intended to have operation in relation to public health and safety more broadly, without the necessary connection to work.^[93]

130. Where employers conceive of family violence as a ‘private’ matter unrelated to work, such directives may lead them to believe that they have no duty to protect workers from workplace harms resulting from family violence. However, as one commentator has noted, ‘the broad formulation of the general duty provisions clearly covers hazards hitherto unregulated, such as ergonomic and psychosocial hazards’.^[94] Similar reasoning can be applied to workplace hazards caused by family violence, despite the fact that family violence has only recently begun to be recognised as a workplace health and safety risk.

131. One proposal following naturally from this discussion is the suggestion to amend OHS legislation to make explicit employers’ duties related to workplace risks caused by family violence. Such a proposal, however, may conflict with the practice of relying on broadly-formulated duties in legislation, and other options, as discussed below, are available. In light of these considerations, the ALRC is not currently considering proposals to amend OHS legislation in this regard.

132. The ALRC is, however, interested in general comment on how employers view the duty of care and their obligations related to workplace incidents involving family violence.

Notifiable incidents

133. Both current OHS legislation and the proposed SWA Bill include a requirement for employers to report certain types of incidents to regulators, such as Comcare or the SRCC. The ‘primary purpose’ of this requirement ‘is to allow regulators to investigate incidents and potential OHS breaches in a timely manner’.^[95]

134. Under the OHS Act, employers must notify the regulator of accidents that cause the death or serious injury of any person, the incapacitation of an employee, or that are ‘dangerous occurrence[s]’.^[96] The OHS Regulations 1991 define a ‘dangerous occurrence’ as one ‘result[ing] from operations that arose from the undertaking conducted by an employer’ that could have caused death or serious injury to any person or incapacitation to an employee, but did not actually do so.^[97] Given that this definition is likely to be replaced by the definition in the SWA Bill, the ALRC is focusing on the latter in this Inquiry.

135. The SWA Bill frames an analogous requirement in terms of ‘notifiable incidents’, which are defined as deaths, serious injuries or illnesses, or any of a set of listed ‘dangerous incidents’ such as uncontrolled explosions or collapses.^[98] Employers must inform regulators of notifiable incidents and keep records of them for at least five years.^[99] Under this standard, acts of family violence resulting in death or serious injury would be considered notifiable incidents. The Bill allows for other categories of incidents to be included as ‘notifiable incidents’ under the regulations, but no incidents relevant to family violence are currently included in the SWA Regulations.

136. Several submissions in response to the 2009 exposure draft of the Bill contended that the definition of ‘notifiable incident’ should include acts of violence directed toward workers or threats of such acts. Many or most incidents of family violence would fall within the bounds of such a definition, making it mandatory to report them.

137. Mandatory reporting provisions would raise the profile and underscore the gravity of incidents of family violence. Aggregate statistics about reported incidents of violence, including family violence, may also be useful in determining the scope and gravity of violence as a workplace health and safety risk.

138. Mandatory reporting would also eliminate employer discretion where an employee wishes an incident to be kept private, and would be subject to possible uncertainty about the meaning of terms like ‘threats’ of violence. The practical effect of expanding the definition, however, is uncertain, in part because there may be ‘shortcomings in the level of reporting of incidents’ generally.^[100]

139. The ALRC welcomes comment on the possible effects of amending the definition of ‘notifiable incident’ to explicitly require employers to report acts of violence, including family violence.

Types of guidance

140. Guidance about how family violence should be addressed as an OHS risk could be provided in regulations, codes of practice, or guidance materials such as those produced by organisations including Comcare.

141. The OHS Regulations 1991 and 1994 do not address violence as a health and safety risk, although the OHS Regulations 1994 address the general topic of hazard identification and risk assessment. Similarly, the OHS Code discusses risk assessment but, other than a section discussing the procedures for transporting cash or valuables, also makes no mention of violence.

142. The SWA regulations likewise do not address violence. A code of practice on bullying and guidance about violence in the workplace is expected to be published by SWA in mid-2011. To date, the most relevant SWA Codes of Practice include ‘How to Manage Work Health and Safety Risks’, ‘How to Consult on Work Health and Safety’, and ‘Managing the Work Environment and Facilities’.^[101] None of these identify or consider responses to family violence as an OHS risk.

143. A range of guidance material supplementing the OHS Regulations and the OHS Code has been published by various organisations such as Comcare and SWA.^[102] These materials are often industry-specific—for example, checklists for use by stevedores. In other cases, materials may be useful across industries—for example, sample assessment forms for controlling risks related to manual tasks like bending or twisting. No existing material addresses family violence.

144. Including discussion of family violence in the regulations or a code of practice would not necessarily change employers’ legal obligations. Reasonable practicability remains the touchstone of an employer’s actions and, as noted above, the broad formulation of the duty already may cover some or many incidents of family violence. However, explicit recognition that family violence can affect the workplace could raise both employers’ and employees’ awareness of family violence as a potential workplace health and safety issue and provide useful guidance.

145. The ALRC is interested in comment on which types of guidance would be most useful to raise awareness, ensure employers take family violence risks in the workplace seriously, and provide useful information for employers.

The substance of guidance

146. In fulfilling their duty of care to employees, employers must consider what is ‘reasonably practicable’. As the Explanatory Memorandum accompanying the SWA Bill describes:

the standard of ‘reasonably practicable’ has been generally accepted for many decades as an appropriate qualifier of the duties of care in most Australian jurisdictions.^[103]

147. Under the SWA Bill, acting in a ‘reasonably practicable’ manner entails ‘taking into account and weighing up all relevant matters’, including the likelihood of a risk, the harm that might result from the risk, and the suitability of ways to eliminate or minimise the risk.^[104]

148. Guidance—whether in a regulatory provision, a code of practice, or a more informal form—may help employers attempting to determine a ‘reasonably practicable’ response to family violence as a workplace health and safety risk. Models from state codes of practice and other jurisdictions—in particular, recent legislation and accompanying guidelines from Ontario, Canada—provide examples of what subjects such guidance could discuss.

Defining family violence as a workplace health and safety issue

149. Ontario’s Health and Safety Guidelines provide an example of how family violence could be identified as a potential source of workplace violence. These guidelines include ‘Domestic Violence’ as a ‘key concept’, recognising:

A person who has a personal relationship with a worker—such as a spouse or former spouse, current or former intimate partner or a family member—may physically harm, or attempt or threaten to physically harm, that worker at work. In these situations, domestic violence is considered workplace violence.^[105]

150. Similar recognition in Australian OHS provisions would alert employers to their obligations and potential risks in this area.

Identifying family violence in the workplace

151. The Ontario Occupational Health and Safety Act does not require employers to assess the risk of family violence occurring in the workplace, instead requiring that an employer take precautions only if an employer

becomes aware, or ought reasonably to be aware that domestic violence that would likely expose a worker to physical injury may occur in the workplace.^[106]

152. This formulation may strike a useful balance in an area where it is difficult to distinguish clearly between workplace and personal responsibilities. Employers should not be required to conduct potentially intrusive examinations into their employees’ private lives, but should also not be allowed to ignore their responsibilities for the health and safety of their workers. Such a balance may already be implicit in relevant Australian legislation, but more explicit discussion of it in the context of workplace risks posed by family violence may be helpful.

153. Suggestions from codes of practice discussing bullying, psychosocial hazards, and general violence may also help employers recognise situations where family violence poses a workplace risk. Relevant suggestions include:

• reviewing absenteeism records;

• checking injury records;

• conducting confidential surveys to identify possible sources of violence; and

• encouraging workers to communicate about workplace violence.^[107]

Responding to family violence in the workplace

154. Guidance might also usefully give information about how employers should respond to and minimise risks associated with family violence, including by:

• informing employers that they should expect to handle family violence concerns on a case-by-case basis;

• providing information about establishing a violence prevention plan;

• providing information about considerations relevant when creating an individualised safety plan for an employee experiencing family violence;

• giving examples of when family violence may pose a workplace risk, such as alerting employers to the dangers associated with partner stalking at the workplace; and

• describing helpful emergency procedures specific to responding to violent attacks in the workplace.^[108]

155. In addition to discussing direct family violence, guidance could also discuss other OHS risks associated with family violence, such as the psychological harms associated with family violence and risks stemming from employees experiencing family violence who are inattentive or distracted. Background information about the prevalence of family violence or the relationship between family violence and workplace homicide might also be instructive for employers unfamiliar with the severity and prevalence of family violence as a workplace health and safety risk.

156. The ALRC welcomes comment on the appropriate scope, level of detail, and content of guidance related to family violence as a workplace health and safety issue.